The special abilities of the healthcare professional

Abstract

Introduction: One of the parameters used when analysing the occurrence of an offence of negligence is the so-called ideal average individual scale. Thus, in order to determine whether medical negligence has occurred, the criteria that apply to the average ideal practitioner are generally used. Nonetheless, there are situations in which healthcare professionals have abilities that are superior to those of the average ideal practitioner. This essay reflects on whether these superior individual qualities should be taken into account when analysing these situations, and asks whether it is possible for a physician to be held criminally liable for negligence (in cases where harm to the life or health of the patient occurs) when he or she is not using those superior individual skills but is simply acting as any other healthcare professional.

Methodology: The methodology used for this research project was the criminal dogmatic perspective, that is, a search of what criminal law has to say regarding the proposed problem, always looking to respect the principle of legality. Also, the methodological path followed throughout this research consisted mainly of three moments: an exploratory phase, a focusing phase and a concretion phase. As for the sources used, 80% of them come from the Spanish doctrine, it having dealt widely with the study of the issue at hand, and the remaining 20% consists of German work translated into Spanish, plus some limited work conducted in Colombia specifically regarding this subject in particular.

Results: There are three theories that aim to answer the aforementioned question, all of which will be analyzed in this essay, namely: the individualizing theory, the objective theory, and the intermediate or complementary theory.